Supreme Court of Canada: Role, History, and Operation

The modern Supreme Court of Canada plays a pivotal role in Canadian politics. As the highest court in the country, the decisions of the Supreme Court touch on a wide range of issues: criminal law, civil law, federalism, and individual rights and freedoms. This article provides an introduction to the Supreme Court of Canada, including its place in Canada’s court system, its history, its modern organization and operation, as well as key issues and debates regarding the Court.

Democracy, federalism, representation and the Supreme Court

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The Supreme Court and Canada’s Judicial System

The Supreme Court of Canada is the nation’s highest court of appeal. In understanding its role further, it is useful to discuss the Supreme Court within the context of Canada’s judicial system.

Role of the Canadian Court System

The courts are the interpreters and arbitrators of Canadian law. The courts do not actually make law; that is, they do not have the power to pass legislation. The legislative branch of government (that is, the federal Parliament and provincial/territorial legislatures) performs this function. Nor do the courts have the power to enforce laws. The executive branch of government, with its bureaucracies and police forces, performs the role of enforcement. Rather, the courts’ role is to interpret the laws passed by the legislature, arbitrate disputes between parties over the application of law, and direct the executive on the proper enforcement of the law.

The reach of the courts is particularly evident when one considers the vast array of laws which it must interpret and adjudicate. There is, for example, the field of criminal law, which governs conduct deemed “criminal” and subject to forms of state sanction. There is also civil law, which regulates relations between individuals, corporations and governments regarding such things as contracts, tort disputes and property law. The courts are also responsible for interpreting and adjudicating the Canadian Constitution, which touches on a number of key political issues, including federalism (the relationship between different levels of government), Aboriginal rights, and the Canadian Charter of Rights and Freedoms (the relationship between the state and individuals).

Components of the Canadian Court System

In fulfilling its role as interpreters and adjudicators of the law, the Canadian court system encompasses a number of different components.

First, there are the purely provincial courts, which include the provincial and municipal courts of each province. The provinces alone establish and maintain these courts, as well as appoint and pay their judges (hence, the term “purely” provincial courts). These courts are usually divided into functional divisions, which reflect the sort of cases they hear; for example, the criminal division, the civil or small claims division, and the youth and family division.

The second component of the Canadian court system is the provincial superior courts, which includes provincial superior trial courts and provincial courts of appeal. These courts are established and maintained by their respective provincial governments. However, unlike purely provincial courts, their judges are appointed and paid by the federal government.

Lastly, there are the purely federal courts, which include the Supreme Court of Canada and the federal courts. The latter is a special set of courts which deal exclusively with matters specified in federal (as opposed to provincial) statute. This includes the Federal Court of Appeal, the Federal Court Trial Division, the Tax Court of Canada and military courts. The federal government alone establishes and maintains the Supreme Court and federal courts, as well as appoints and pays their judges (hence, the term “purely” federal courts).

Structure of the Canadian Court System

While there exist different components (see above), the Canadian courts are nevertheless organized into a single system. Provincial courts may hear cases dealing with federal laws, and federal courts may hear cases dealing with provincial laws. (The one exception is the federal courts, such as the Federal Court Trial Division, the Tax Court or military courts, which only hear cases dealing with particular federal statutes). As such, cases can begin with provincial level courts and cross over to federal level courts as they make their way through the Canadian court system.

This single system, moreover, is organized hierarchically, with lower and higher courts. This hierarchy allows the decisions of a lower court to be appealed to and reviewed by a higher court. At the top of this hierarchy is the Supreme Court of Canada, which is the nation’s last court of appeal and which has the power to overturn the decisions of any other court in Canada.

Figure 1: The Structure of the Canadian Court System

(Diagram taken from Canada’s Courts, McCormick, 1994)

Note that the arrows in Figure 1 indicate the flow of appeals in the Canadian court system. For a case heard in a provincial court, for example, an appeal would first be heard in a provincial superior trial court, then a provincial court of appeal, and finally, in the Supreme Court of Canada. Under this system, one could not appeal a decision in a provincial court directly to the Supreme Court, skipping the other courts.

The Supreme Court and Canada’s Court System

As the highest court in the land, the Supreme Court plays a central role in the state and evolution of Canadian judicial interpretation and analysis. For example, when rendering a decision, the Supreme Court often makes clear its view about how a particular law should be interpreted and applied by the court system as a whole. Lower courts are subsequently obliged to follow the Supreme Court’s lead; otherwise, they will run the risk of having their decision overturned on appeal. This, in turn, lends itself to uniformity in the Canadian court system across the various courts.

Moreover, the Supreme Court will often use its position to intentionally direct change in the interpretation and application of laws. In a decision, the Supreme Court may explicitly reject a traditional way of interpreting a law or manner of judicial reasoning, and will lay down a new approach. Again, the lower courts are obliged to follow the Supreme Court’s lead and apply the new principles when rendering their own decisions.

History of the Supreme Court of Canada

Important events in the evolution of the Supreme Court

Since its inception, the Supreme Court of Canada has undergone important changes in its role and operation. The following provides a brief summary of key events in the Supreme Court’s evolution.

Establishment of the Supreme Court

The Supreme Court was first created in 1875, with the federal government’s passage of the Supreme Court Act.

Early in its life, the Supreme Court was not truly “supreme” within the Canadian court system. When Parliament first created the Supreme Court, it did not abolish the traditional practice of appeals “to the foot of the throne” in the form of the Judicial Committee of the Privy Council (JCPC). The JCPC was a British body, staffed by respected judges and law lords, which advised the British monarch and served as the final court of appeal for the British Empire. Decisions of the Supreme Court could be appealed to and overturned by the JCPC. Moreover, if the litigants in a case agreed, it was possible for appeals to bypass the Supreme Court altogether, and go directly to the JCPC.

As a proportion of the Supreme Court’s total decisions, there were relatively few appeals to the JCPC, and they did not always result in an overturning of its decisions (McCormick, 1994). Nevertheless, the presence of the JCPC created a “captive court,” in which the Supreme Court was reluctant to display initiative or judicial leadership within the Canadian court system as a whole (McCormick, 1994).

Patriation of Judicial Authority in Canada

In 1949, appeals to the JCPC were abolished. As a result, the Supreme Court became truly “supreme” within the Canadian court system, as it was now the last court of appeal in the nation.

Patriation of judicial authority, however, did not lead to immediate and radical changes in Canadian jurisprudence. Since the amendment was not retroactive, cases already before Canadian courts continued under the traditional system of appeals, with the JCPC deciding its last Canadian case in 1957. Moreover, the legal doctrine of precedence, in which older decisions should be followed in new cases, further constrained the Supreme Court’s ability to effect drastic change (McCormick, 1994).

Nevertheless, there were some early indications that the Supreme Court was willing to take initiative and judicial leadership. This was most evident in a series of cases in which the Supreme Court altered judicial interpretations of Section 91 of the Constitution, which deals with the federal powers and jurisdictions. The JCPC had previously interpreted Section 91 as an emergency clause, which allowed the federal government to take on additional powers temporarily and only in times of national emergency. The Supreme Court, however, re-interpreted Section 91 to give the federal government permanent powers in key areas of national interest, such as aviation and telecommunications.

Entrenchment of the Canadian Charter of Rights and Freedoms

Over time, the Supreme Court has taken on the role of judicial leader to a fuller extent. This is particularly true in a relatively new area of constitutional law – the Canadian Charter of Rights and Freedoms. The Charter was added to the Canadian Constitution in 1982, and sets out the fundamental rights of individuals in Canada in relation to the state. The Charter provides persons with certain fundamental freedoms (such as freedom of religion and consciousness, expression, and association), legal rights, democratic rights, and equality rights.

The entrenchment of the Charter is significant in that it enables the courts to review any government law or action that may run afoul of Charter rights. Moreover, it is up to the courts to interpret the meaning of Charter rights and their application to specific circumstances. In the context of the right to freedom of expression, for example, the courts are responsible for decide the meaning of key concepts, such as “freedom” and “expression,” as well as when it is or is not permissible for the state to violate this right. As such, the courts have become, at least potentially, the final word on a wide range of public policy issues, at both the federal and provincial/territorial levels.

In this context, the Supreme Court plays a critical role. As the highest court in the country, it has the final say on how all courts ought to interpret and apply Charter rights, with all other courts obliged to follow the Supreme Court’s lead. Moreover, the Supreme Court has shown a preparedness to uphold Charter rights in the face of the state. It has struck down or altered federal and provincial legislation in a wide range of areas, such as abortion, retirement rules, voting rights for prisoners, prohibitions on spreading false statements, and spending limits on political advertising during provincial referendum, just to name a few.

Operation of the Supreme Court of Canada

Overview of the organization and operation of the Supreme Court

Jurisdiction of the Supreme Court

As the final court of appeal, the Supreme Court possesses the jurisdiction to hear cases from a wide range of sources, including the civil law of the Province of Quebec, the common law of the other provinces and territories in Canada, and all legislation passed by federal, provincial, territorial and municipal governments.

The bulk of the Supreme Court’s caseload is appeals from the various provincial and territorial courts of appeal (McCormick, 1994). In special circumstances, the Supreme Court may hear appeals from provincial superior trial courts (normally, appeals from these courts go first to the provincial court of appeal). The Supreme Court also hears appeals from the Federal Court of Appeal, the Court Martial Appeal Court (the military court of appeal), and federal boards and tribunals.

Another important source of cases for the Supreme Court is federal government references, which are questions of significant legal consequence that are submitted by the federal government to the Supreme Court (the Court may also hear appeals from provincial/territorial government references which are submitted to provincial courts of appeal). In 2004, for example, the federal government referred a number of legal questions to the Supreme Court concerning the constitutionality of a federal law legalizing gay marriage.

Make-up of the Supreme Court

The Supreme Court consists of nine judges or justices: one Chief Justice of Canada and eight puisne justices (puisne simply means “inferior in rank”). A judge of the Supreme Court holds office until s/he retires or reaches the age of 75, but can be removed earlier for incapacity or misconduct by the Governor General on the direction of the Senate and House of Commons (Supreme Court of Canada, March 2007). During their tenure, judges must devote themselves exclusively to their judicial duties, and may not hold any other remunerative office under the federal or provincial/territorial government, nor engage in any business enterprise (Supreme Court of Canada, March 2007).

The Supreme Court Act sets out several rules concerning who may serve as a judge on the Supreme Court. Judges must either be drawn from among Canada’s superior court justices, or from among barristers with at least 10 years’ standing at the Bar of a province or territory. In addition, the Act requires regional representation in the makeup of the Supreme Court. At least three judges must be appointed from the province of Quebec. This rule is commonly justified on the grounds that Quebec uses civil law instead of common law (as the rest of the country does), and the Supreme Court needs judges familiar with that system. While not required by the Supreme Court Act, it is tradition to divide the remaining six positions on the Supreme Court in the following manner: three from Ontario, two from Western Canada, and one from Atlantic Canada.

For more information on current and former judges of the Supreme Court:

Appointments to the Supreme Court of Canada

Appointments to the Supreme Court fall within the exclusive jurisdiction of the executive branch of the federal government. Theoretically, the Governor General of Canada has the sole power to appoint Supreme Court judges. In practice, however, it is customary for the Prime Minister of Canada to choose the candidate, with the Governor General simply following the Prime Minister’s decision.

In choosing a Supreme Court judge, the Prime Minister has complete discretion, with the sole exceptions being the stipulations regarding professional experience and regional representation under the Supreme Court Act. The rest of Parliament, as well as the provinces and territories, have no formal authority in appointing judges to the Supreme Court. It is, however, open to the Prime Minister to consult with provincial/territorial leaders prior to making a selection, as well as to allow some parliamentary review of that selection, if s/he so chooses. In 2004 and 2006, special parliamentary committees were allowed to review the appointments of justices Rosalie Abella, Louise Charron, and Marshall Rothstein to the Supreme Court. It is important to note, however, that theses committee had very limited review powers and no authority to veto the Prime Minister’s selection.

In the context of deciding cases, the Chief Justice does not have any more power than the other judges on the Supreme Court. The decision of the Chief Justice does not count any more than the other judges. Nor can s/he overrule the decisions of other judges or remove them from their position. Nevertheless, the Chief Justice can attempt to use his/her leadership position to sway a court in one direction over another on key legal issues.

The Chief Justice possesses several formal administrative powers and responsibilities. He/she presides over all sittings of the Supreme Court at which s/he is present, and sits on several key government committees, such as the Canadian Judicial Council and the advisory committee to the Governor General on membership in the Order of Canada. The Chief Justice is also responsible for dividing the work of the Supreme Court by choosing the panels of judges to hear cases and motions brought before the court.

Moreover, should the Governor General die, become incapacitated, or be absent from the country for more than one month, the Chief Justice would become the Administrator of Canada and, under that title, exercise all the powers and duties of the Governor of General.

Appeals to the Supreme Court

The Supreme Court hears two sorts of appeals from lower courts: leaves to appeal and appeals as of right. The former refers to appeals which the Supreme Court has granted a party permission to appeal. In formal terms, this is referred to as “granting leave to appeal,” hence the term “leaves to appeal.” The Supreme Court has considerable discretionary power to grant or reject leaves of appeal, thus giving it control over the sorts of cases it hears. It usually grants leaves of appeal based on its assessment of the public importance of the legal issue raised in a given case and whether or not the issue warrants the consideration of the Court (Supreme Court of Canada, November 2007).

The second sort of appeal, appeals as of right, include those cases where the Supreme Court has no discretion as to whether or not to hear the appeal. Instead, the Court is obliged to hear the appeal and render a decision. In criminal cases, for example, an appeal may be brought as of right where one judge in a provincial or territorial court of appeal dissents on a point of law (Supreme Court of Canada, November 2007).

The Supreme Court holds three sessions, each of which lasts approximately three months. The Court’s hearings are open to the public and are often taped for delayed telecasting in both English and French, Canada’s two official languages. Most appeals are heard by a panel of seven to nine judges, with the Court usually hearing two appeals each day. During a hearing, litigants from each side are given an opportunity to present arguments, usually about one hour each. Interveners (or interested parties) may also be recognized by the Supreme Court and given an opportunity to be heard.

Judgments of the Supreme Court

Once the Supreme Court has heard an appeal, it will render its decision on the case. This is usually done in written form well after the appeal has been heard. Written decisions of the Supreme Court are very important in the Canadian court system, as they outline the particular reasons and principles endorsed by the Court in determining a case or legal issue. This allows lower courts, lawyers, governments, and the public to understand precisely how the Supreme Court is interpreting and applying Canadian law.

Central to any Supreme Court judgment (with the exception of government references) is whether it has allowed or dismissed the appeal. In allowing an appeal, the Supreme Court is recognizing that the lower court has made some error which affects the proper determination of the case. It will overturn the decision of the lower court, and either make its own decision or remit the case back to a lower court to be re-heard. In dismissing an appeal, the Supreme Court is recognizing that the lower court’s determination of the case should stand. It is important to note, however, that the Supreme Court may dismiss an appeal even if it takes issue with certain lines of reasoning of the lower court. This occurs when the Supreme Court adopts a different line of reasoning, but nevertheless comes to the same result as the lower court.

Supreme Court judgments do not need to be unanimous. In other words, there is no requirement that all judges on a panel come to the same determination of a case for exactly the same reasons. Instead, judges may decide the case in very different ways. In this context, the court operates under majority rule. Take the example of a seven-judge panel, where four conclude that an appeal should be allowed, while three conclude that it should be dismissed. The four judges in favour of allowing the appeal are referred to as “the majority,” and their ruling becomes the judgment. The other three judges are referred to as “the minority,” and their ruling becomes the “dissenting opinion.” Dissenting opinions can be important, as subsequent rulings of the Supreme Court can pick up on the lines of reasoning and principles endorsed in those decisions when determining future cases.

Issues and Debates on the Supreme Court of Canada

Democracy, federalism, social representation and the Supreme Court

The Supreme Court in the Context of Democracy

One important debate regarding the Supreme Court is its role in the context of Canadian democracy. On the one hand, it may be argued that the Supreme Court is an inherently undemocratic institution. The Supreme Court is an appointed body, beyond democratic control (although, judges on the Supreme Court are appointed by democratically elected governments). Moreover, the Supreme Court may use its powers to overrule democratically elected legislatures. As such, it is appointed judges, and not elected representatives, which have the final say on important issues of public policy, such as abortion, voter rights, spending on election advertising, etc.

On the other hand, one may argue that the Supreme Court is fundamental to the promotion of an open and fair democratic society. Central here is the concern over the tyranny of the majority, in which a segment of society may use legal or political means to exclude minority groups from political or social participation. In such situations, the Supreme Court can be viewed as a protector of democracy, ensuring that all persons, regardless of their ethnicity, social status or moral/political views, have the necessary rights to fully participate in political and social institutions and processes.

The Supreme Court in the Context of Federalism

Another important debate concerning the Supreme Court centres on its status within the context of Canadian federalism. Here the issue isn’t so much the role of the Court, but its basic institutional framework. As discussed above, the Supreme Court is the highest court in Canada, with a jurisdiction that covers both federal and provincial/territorial laws, as well as interpreting and applying the basic principles of Canadian federalism. In sum, the Supreme Court can have a large impact on all levels of government.

Only the federal government, however, has the power to appoint its justices, with little or no input from the provinces and territories. As such, it is open to the federal government, if it so chooses, to fill the Supreme Court with judges that would support the exercise, or even extension, of federal power at the expense of the provinces. Whether or not such a bias does in fact exist in the Supreme Court is a source of controversy within the field of Canadian legal and political scholarship.

The Supreme Court and Social Representation

Another key issue centres on the representation of different social, gender, ethnic and religious groups in the membership of the Supreme Court. Canada is a highly pluralistic, economically stratified, and multicultural society, yet historically the judges of the Supreme Court have predominately been well-educated, affluent, white males of either British or French heritage.

One may argue that the lack of representation implies bias in the Supreme Court’s adjudication of cases. In its more vulgar form, this sort of argument centres on the presence of outright prejudice on the part of Supreme Court judges. While such an argument may have been plausible in the early years of the Court, it would be very hard to make such a case today. In its more subtle form, such an argument can be made in terms of identity politics and the ability of persons to fully understand issues which are beyond their own particular social subjectivity. Under such a view, one might argue that a white male judge cannot adequately comprehend and address racism or gender discrimination, as he has never lived it himself. The issue here is not outright prejudice, but simply an inability to understand the full nature and effects of discrimination due to one’s privileged status in society.

One may further argue that this lack of representation sends a message to society which reinforces inequality. As the Court has been predominately upper class, Christian, white males, the state is somehow creating or reinforcing social views that other social groups are to be valued less in society. By ensuring better social representation on the Court, the state is sending the alternative message that all groups are to be valued and respected equally, regardless of their gender, ethnicity or economic status.

Whether or not these problems do exist is an issue debated in Canadian political and legal scholarship. It is important to note, however, that today’s Supreme Court is much more representative than it has been in the past. At the time of the writing of this article, four of the nine judges on the Court were female, including the Chief Justice of Canada. Many of the judges are from non-British or French heritages, although, none are a visible minority. Moreover, the Supreme Court has rendered many decisions that can be viewed in terms of promoting minority rights and status in Canada. Nevertheless, the issue of inadequate representation cannot be easily dismissed.

Sources and Links to More Information

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Sources Used for this Article

McCormick, P. Supreme at Last: The Evolution of the Supreme Court of Canada. Toronto, Ontario: James Lorimer & Company Ltd., Publishers., 2000.